Cannabis Legalization: Defining the Language of Legalization and Decriminalization

cannabis legalization

Cannabis Legalization: Defining the Language of Legalization and Decriminalization

Why Define Cannabis Legalization Terms?

So what is the difference between cannabis legalization and decriminalization? What is rescheduling, is it similar to de-scheduling cannabis? Read on to learn more about framing cannabis legalization initiatives and what these terms actually mean.

All too often discussions inevitably occur with individuals who are not as familiar with terms and jargon that become an understood language within an industry or occupation. The goal of this report defines terms important to the cannabis legalization movement and the markets its successes have created. This report is designed to serve as a tool to illustrate how these terms impact state and federal laws, consumers, and stakeholders in the Cannabis Industry. Each of the terms defined has an impact on our understanding of the goals and progress of the cannabis legalization movement, those who support it, and those who benefit from it.

While this will not be a comprehensive list of terms it explores the terms that most impact legal access to cannabis. The following will be discussed in this report: Decriminalization, Rescheduling & De-scheduling, Compassionate Care and Medical Cannabis laws, Adult-Use Legalization, and Amended Scheduling.

What is Cannabis Legalization?

So what is cannabis legalization? Cannabis legalization or what is often referred to as adult-use cannabis legalization refers to states that have expanded access to adults 21 years of age and older. Possession within states’ legal limits is not subject to a criminal or civil penalty. Many of these laws were passed via ballot initiatives that promoted regulating cannabis similarly to alcohol, taxing sales at a higher rate than medical cannabis, and utilizing tax revenue to help fund state budgetary items like education. Possession limits for Adult-Use, or recreational cannabis as it is also known, are typically set lower than for medical patients. Products in adult-use markets also tend to have caps on the amount of THC that can be present in infused products such as edibles or concentrated products like vape pens or concentrates.

There are currently 11 states with Adult-Use markets with evolving regulations and requirements to address concerns including social equity and 4 with initiatives on the ballot for legalization in 2020. Now that we’ve covered what cannabis legalization is let’s move onto decriminalization.

Cannabis Decriminalization

The simplest definition of cannabis decriminalization is a law that reduces or removes the criminal penalties related to low-level cannabis possession. It is widely understood to mean that criminal penalties are not applied to possession of cannabis in amounts defined by law to fall within possession for personal use. In reality, the possession limits defined in these laws can vary from less than 10 grams to as much as 3.5 ounces. Additionally, possession that goes beyond these limits may still be subject to criminal prosecution.

Decriminalization laws at the state level are a big step forward for consumers in possession of small amounts of cannabis because criminal prosecution for this type of possession becomes a low priority for the state criminal justice system. This does not affect federal prosecution as there are no federal decriminalization laws with respect to cannabis at this time.

Federal cannabis decriminalization, were it happen anytime soon, would protect consumers but it would not protect state-legal cannabis markets unless specifically stated in the legislation. At this point any federal legislation that decriminalizes cannabis possession, but does not address the state legal markets that currently exist, would keep
the compliant stakeholders that operate within these markets in a legal grey area that is still at risk for criminal prosecution. Without expressed permission to banking institutions among other traditional business services, services to these stakeholders would continue to pose a risk to their continued operations.

Similarly, such a narrow view of decriminalization would not change the enforcement of tax codes like IRS 280E which impacts cannabis companies significantly by excluding many business expenses that are standard operating deductions for most companies, limiting cannabis company tax deductions to cost of goods sold (COGS). At this time there are currently 14 states with decriminalization provisions in their laws.

Rescheduling and De-scheduling Cannabis

Rescheduling and De-scheduling cannabis refer to the Controlled Substances Act of 1970 which contains five schedules under which a substance can be placed depending on its medical use, the potential for abuse, and safety or dependence. Cannabis is currently placed under Schedule I, which is reserved for substances with no known medical value that has a high potential for abuse and dependence. This scheduling limits opportunities for research on a substance, though it is becoming clearer that cannabis should not be placed at the schedule it currently resides under.

Rescheduling Cannabis means it would be placed under a less restrictive Schedule and potentially become eligible for greater research and medical use, though it could be potentially damaging to the Adult-Use markets as well as create new hurdles that current cannabis business operators may not be equipped for.

De-scheduling would remove cannabis from the CSA list entirely. While this action would remove many of the barriers currently in place for more efficient cannabis business operations, for instance, banking and the 280E hurdles could be eliminated, it would also open the markets up to more traditional businesses that are currently impacted by the legalization of cannabis such as alcohol, tobacco, and the pharmaceutical industries to name a few. This option may present a mixed blessing for consumers as it could radically reshape the cannabis industry as we know it.

marijuana legalization

Compassionate Care and Medical Cannabis Laws

Compassionate Care cannabis legalization refers to states that have very limited medical cannabis/medical marijuana programs where the list of qualifying conditions is very small. Qualifying conditions for these programs could be as limited as only allowing patients who are terminally ill to participate. Compassionate Care legalization can also refer to medical cannabis programs that severely limit the amount of THC products can contain. Sometimes states that have these programs are referred to as Low-High states, these programs tend to favor products that contain low percentages of THC (tetrahydrocannabinol) and high percentages of CBD (cannabidiol) for the perceived higher therapeutic value and lower potential for dependence.

Compassionate Care cannabis legalization refers to states that have very limited medical cannabis/medical marijuana programs where the list of qualifying conditions is very small. Qualifying conditions for these programs could be as limited as only allowing patients who are terminally ill to participate. Compassionate Care legalization can also refer to medical cannabis programs that severely limit the amount of THC products can contain. Sometimes states that have these programs are referred to as Low-High states, these programs tend to favor products which contain low percentages of THC (tetrahydrocannabinol) and high percentages of CBD (cannabidiol) for the perceived higher therapeutic value and lower potential for dependence.

Medical Cannabis or Medical Marijuana programs provide greater patient access through a larger list of qualifying conditions. These lists of conditions can be added to after medical cannabis has been legalized. Possession within a state’s legal limits is not subject to criminal or civil penalty.

Products available in these markets are regulated by state agencies and business licenses are limited to those who can meet ownership requirements. Early markets did not account for social equity, though state laws are evolving on this issue.

There are currently 33 states, 3 U.S. Territories, and Washington D.C. where medical cannabis is legal at every level except federal where municipalities choose to allow it. This does not mean that every city or town in a state that has legalized has to allow cannabis business in their jurisdiction. For example, in California where medical cannabis has been state-legal since 1996 and the Adult-Use market has been state-legal and operational since 2018, many cities and counties still do not allow cannabis businesses to operate within their limits. Currently, every state that now has Adult-Use cannabis laws also has medical cannabis laws. There are currently 3 states with ballot initiatives to legalize cannabis for medical use in 2020.

Amended Scheduling – The STATES Act

Full federal legalization of cannabis has been a hotly debated subject that has been gaining momentum since 2016. The closest the legalization movement has gotten so far in safeguarding state-legal markets has been the Cole Memo which lowered federal enforcement of cannabis law priorities in states with regulated medical cannabis programs and the Rohrabacher-Farr/Rohrabacher-Blumenauer Amendment, which prohibits the Justice Department from spending funds to interfere with state-regulated medical cannabis programs.

These measures limited enforcement but still did not address the lack of available banking, which is both an economic and safety issue for cannabis businesses; or IRS 280E, which as stated above, prevents cannabis businesses from deducting many standard costs associated with running a business beyond the allowed cost of goods sold (COGS) resulting in a much higher tax bill, often greater scrutiny of returns, and a high chance for audits. A 2015 white paper issued by the National Cannabis Industry Association on the topic of 280E reported that some cannabis companies were being taxed at an effective tax rate of 70% or more because of the inability to deduct typical business expenses from their gross income. This issue has not changed much if at all in the years since the white paper was published.

The STATES Act, unlike Decriminalization or legalization at either Medical or full Adult-Use, does not establish possession limits or establish regulations regarding cannabis. It doesn’t Reschedule or De- schedule Cannabis on the CSA, it Amends it. When/if the STATES Act passes it will amend the CSA to state that the provisions of the title on cannabis shall not apply to state-regulated cannabis markets or any person acting in compliance with state cannabis regulations. This exception would also apply to persons acting in compliance with tribal cannabis laws. This not only reinforces a state’s right to legislate the issue of cannabis in accordance with the wishes of its population, it also states that the proceeds from state-legal cannabis transactions shall not be deemed unlawful. This appears to mean that IRS 280E would not apply to compliant state-licensed cannabis businesses.

Cannabis USA

Conclusion:  Opportunities for Bi-Partisan Collaboration

Now, more than any time in American history since the establishment of the CSA, we have an opportunity to collaborate with current representatives and aspiring political leaders to build a framework for cannabis legalization. Doing so presents an unprecedented chance to address issues of social inequality that are a byproduct of the War on Drugs as well as identifying potential revenue streams through legalization that have not been available before.

The goals of each of the terms discussed in this report aim to lessen the social, economic, and criminal ramifications tied to cannabis laws currently in effect. Decriminalization, trading criminal penalties for civil, is an important first step for many states. It is far from perfect and can be unequally enforced, but its a start none-the-less.

The debate over CSA Rescheduling or De-scheduling of cannabis calls into question the decision to place it among substances that have been found to be harmful and highly addictive in the first place. This is especially true as America faces an opioid epidemic impacting citizens from a variety of walks of life.

Legalization, whether for Medical or Adult-Use, is about freedom of choice, developing and evolving industries, and providing safer options than the illicit market while providing much-needed revenue to states. Amended Scheduling places trust in the states to enact laws and regulations that make sense for their citizens while reserving federal authority to enforce existing laws against the illicit market, and potentially providing much-needed relief for heavily taxed cannabis businesses.

The goals of each of the terms discussed in this report aim to lessen the social, economic, and criminal ramifications tied to cannabis laws currently in effect.

  • Decriminalization, trading criminal penalties for civil, is an important first step for many states. It is far from perfect, and can be unequally enforced, but its a start none-the-less.
  • The debate over CSA Rescheduling or De-scheduling of cannabis calls into question the decision to place it among substances that have been found to be harmful and highly addictive in the first place. This is especially true as America faces an opioid epidemic impacting citizens from a variety of walks of life.
  • Legalization, whether for Medical or Adult-Use, is about freedom of choice, developing and evolving industries, and providing safer options than the illicit market while providing much-needed revenue to states.
  • Amended Scheduling places trust in the states to enact laws and regulations that make sense for their citizens while reserving federal authority to enforce existing laws against the illicit market, and potentially providing much-needed relief for heavily taxed cannabis businesses.

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Stephanie Till - Green Rush Indexed Data

Stephanie Till - Green Rush Indexed Data

This article was written by Stephanie Till of Green Rush Indexed Data with data compiled and provided by Bridge West CPAs. Stephanie is a Compliance Expert as well as a Historian who is currently archiving the Green Rush of the cannabis industry. The mission of her company is help clients by providing quality research services, custom tailored cannabis compliance consulting, dynamic training materials and exceptional customer service for those in the young cannabis industry.

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